R v Shaun James Cox (Appellant) Nos. Sccrm-97-165, Sccrm-97-166 Judgment No. 6507 Number of Pages 7 Criminal Law Escape

[1997] SASC 6507

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

COX, PRIOR AND WILLIAMS JJ

CATCHWORDS:

Criminal law - escape

Sentencing evidence - opinion evidence - attempting to escape from lawful custody - appellant tried and convicted by Judge alone - evidence of experiment introduced by Crown without warning during trial - whether evidence inadmissible because witness not qualified and conditions of experiment not substantially similar - whether lateness of evidence made trial unfair - consideration of principles of procedural fairness. Criminal Law Consolidation Acts254(1); Juries Rules 1996 r13, referred to. R v Ireland (No. 2) [1971] SASR 6; R v Neilan [1992] 1 VR 47, applied. King v The Queen (1986) 161 CLR
425; Walton v Gardiner (1993) 177 CLR 378; Rv District Court of South Australia (1995) 63 SASR 223, considered.

Criminal law - jurisdiction, practice and procedure - sentence - attempting to escape from custody - principles applicable to non-parole period.

HEARING:

ADELAIDE, 8-9 December 1997 (hearing) 23 December 1997 (decision)

#DATE 23:12:1997

#ADD 14:1:1998

Appearances:

Appellant:

Counsel: Mrs M E Shaw QC

Solicitors: Michael Dadds

Respondent:

Counsel: Mr S A Millsteed QC

Solicitors: DPP (SA)

ORDER: allow the appeal for the purpose of reducing the non-parole period extension from eighteen months to fifteen months. In other respects the conviction and sentence affirmed.

COX J

Appeal against conviction and sentence for attempting to escape from a prison van.

The appellant was tried in this Court on an information that charged him with having, on 7 November 1996, at Adelaide attempted to escape from custody: Criminal Law Consolidation Act 1935s254(1). He pleaded not guilty and was tried by a Judge sitting alone. The learned Judge heard evidence from a number of Crown witnesses and the appellant gave evidence in his defence. The Judge found the charge proved and gave reasons for his decision. He sentenced the appellant to eighteen months' imprisonment, to be served cumulatively upon an existing sentence, and he extended the appellant's existing non-parole period by eighteen months. The appeal is brought against both conviction and sentence.

The appellant was being transported in a prison van from the Sir Samuel Way Building to the Adelaide Remand Centre. He had been put into a cubicle. He was wearing handcuffs. There were six cubicles inside the van, three on either side with a corridor dividing them. Each cubicle was secured by a sliding metal door. There was a locking device on the door consisting of a hooked-shaped locking bolt which slid into place when the door was closed. The locking bolt could be fixed in a rigid position by means of a deadlock which was operated by a key from the outside. There was a skylight or hatch in the roof of the van above the corridor. The opening was covered by a perspex cover.

It was common ground that the appellant somehow let himself out of his cubicle in the course of the journey and put the torso of his body through the skylight. He was seen in that position by an officer of the Dog Squad who was in a following vehicle and he gave the alarm. The van sped into the Remand Centre and as it did so the appellant got down from the skylight. There were two main issues at the trial - how the appellant got out of the cubicle and why he put the top half of his body through the skylight. His evidence was that someone had left his cubicle door open and he simply walked through it. He thought he might have been set up and his intention was to draw attention to the incompetence of the prison officers by simply putting his head and shoulders through the skylight and waving. The learned Judge disbelieved him on both issues. He found that the appellant got out of the cubicle by manipulating the lock and that he started to get through the skylight in an attempt to escape.

Both grounds of appeal relate to the evidence of a police officer named Garde. Detective Garde had worked as a locksmith before joining the police force and was qualified to give evidence about locks. He said that on May 15 he inspected the lock on the van cubicle that the appellant had occupied. He described the lock. It could be latched shut by means of the spring-loaded hook, and it could be locked securely by means of a key. If it was merely latched it could be unlatched from the inside by placing a thin object between the door frame and the door and lifting the locking bolt. The Crown's case is that this is what the appellant must have done. It led evidence from another witness that, after the incident in the van, broken portions of a small plastic calendar card were found in the van, the larger part on the floor near the cubicle door. Other fragments of the card were located in the track of the sliding door and there was a tiny fragment on the cubicle seat. Garde said that on the morning of the day he gave evidence, being the second day of the trial, he went to the prison van again and conducted an experiment. He took a Telstra phonecard, sat inside the cubicle and shut the door, slid the phonecard between the door and the frame and lifted the hook locking bolt. This meant that he could open the door with the card from the inside if it was latched but not also locked with the deadlock key. In cross-examination he said that the moulding of the seat made access to the hook lock a little difficult and that he was not handcuffed when he conducted the experiment. However, the phonecard was quite flexible and he was able to bend it as he was manipulating it. He had earlier said that he was not wearing handcuffs when he did the experiment. He was shown the broken portions of the calendar card by the Judge and he said that he could have achieved with that card what he achieved with the phonecard had the calendar card been intact, and his opinion was that it would have been rigid enough and flexible enough and thin enough and long enough to have produced the same result.

The use that the Crown sought to make of this evidence is obvious. Its case was that the appellant was put into the cubicle and the door shut, but that the guard mistakenly failed to lock the door with the key, with the consequence that the appellant let himself out by using the calendar card and went to the skylight. However, Mrs Shaw, for the appellant, argued that the experiment evidence was inadmissible.

Garde was an experienced locksmith but he was not really using his expertise when he opened the door latch with the Telstra card. It was a very simple experiment that anyone could have done and it produced evidence that was relevant to the trial. The conditions under which the experiment was conducted did not have to be identical with the conditions allegedly operating at the time the appellant is said to have escaped from the cubicle. What was needed was a "reasonable or substantial similarity with those conditionsÖ" See R v Ireland [No.2] [1971] SASR 6, R v Neilan [1992] 1 VR
57. The Judge was able to compare for himself the Telstra card and the fragments of calendar card. The fact that the appellant was wearing handcuffs but Garde was not, or that the appellant had a broken hand, did not invalidate the evidence. Garde's evidence comparing the two cards was basically descriptive. In so far as it included an expression of opinion on a very simple question, the witness had qualified himself sufficiently by his expert knowledge of the lock and his general experience and the experiment itself. The Judge may well have considered, in view of the fragmented condition of the calendar card, that this was the only way to get a piece of relevant, essentially descriptive, evidence before the Court. What Garde said about the calendar card was simply an amplification of what he had already said, without objection, about it being possible to open the door with "a thin object". In my opinion, this ground of appeal fails.

Ground 2 complains that the experiment evidence, even if admissible, should not have been received. This is an argument about its timing and the effect that the very late introduction of the evidence had upon the trial procedures.

The appellant was committed for trial on this charge in February 1997 and he made his election for trial by Judge alone on April 1. Evidently the committal papers had not included any witness statement from Detective Garde but the defence were given notice of his involvement at a pre-trial conference and a copy of Garde's statement of May 26 was supplied to the defence on May 30. The statement included an account of Garde's inspection of the cubicle lock on May 15 and his opinion, which he repeated at the trial, that the lock was in good working order. Garde said in the statement, "When the door is just slammed shut, the bolt can still be lifted by placing a thin object between the door and the frame and lifting the hook locking bolt," but there was no mention of any experiment. At that stage, indeed, no experiment had been conducted. Then, when the trial was already underway, Garde made his experiment and, despite defence counsel's objection to the trial Judge, he was allowed to give evidence about it. The result, it was said, was to deny the appellant a fair trial.

I should say that the defence knew from the outset that the calendar card fragments had been found at the scene, and it could have come as no surprise that the Crown was going to suggest that this was the means by which the appellant got out of the cubicle. However, what was significant from the defence point of view was that, even after Garde had made his May 15 inspection and included in his witness statement his opinion about a "thin object" being a possible means of manipulating the latch, there was no actual experiment upon which the Crown could rely, and this was seen as a tactical weakness in the Crown case that the defence would be able to exploit. Had the witness statement referred to an experiment, it would not have been too late for the appellant to reconsider his wish to be tried by Judge alone and, if he thought fit, apply for leave to withdraw his application. By the time he first learnt of the experiment it was too late to do that. Furthermore, it was unfair to expect the defence to cope with the experiment evidence at the trial on practically no notice at all. For those two reasons, it was said, the trial was unfair.

There is no doubt at all that there was ample opportunity for the Crown to obtain this evidence well before the trial. There were status conferences at which the Crown said that there might be a further declaration coming in about the cubicle lock and this culminated in the declaration that the defence received on May 30. The trial began on June 10. Garde was called on the afternoon of June 11. Notice of the experiment evidence was given to defence counsel at 2.15 that day.

Affidavits were received on the appeal from the appellant, his solicitor and his trial counsel. The appellant said that he had had pronounced misgivings about trial by Judge alone. He had, as late as February 1997, been acquitted by a jury of a charge of escaping from lawful custody and he had great faith in the jury system. However, he was advised that it was appropriate to be tried without a jury in this case because of a lack of evidence and because he might have to disclose his prior convictions. However, his misgivings continued. On the morning of the trial he was told by the Judge that his election notice had been incorrectly signed and asked whether he wanted to maintain his election. He spoke with his counsel and, in accordance with counsel's advice, he confirmed his prior election. Had it not been for that advice, he would not have elected for trial by Judge alone. The lawyers' affidavits were generally confirmatory of the appellant's.

Mrs Shaw submitted that the trial was procedurally unfair in a number of ways. The Crown transgressed the Court's own procedural rules and practices. If notice had been given of the additional evidence prior to the trial commencing, the appellant would have been entitled to seek leave from the court to withdraw his election "because of events which have occurred since the making of the election" ( Juries Rules 1996, r13). Furthermore, giving the defence practically no notice of the experiment evidence put excessive pressure on counsel and had an unfair influence on the trial. The result was that the appellant did not have the trial to which he was entitled.

Any submission of actual prejudice possibly impinging on the verdict must fail, I think, for want of any solid evidence or argument to support it. Obviously the position was unsatisfactory and the learned trial Judge was at pains to ensure that the appellant would not suffer any real prejudice if the experiment evidence were called. At the outset he offered the defence the opportunity, if they wanted it, of testing Garde's version by conducting their own experiment. The offer was not accepted. During Garde's evidence-in-chief, before he described the experiment, the Judge obtained an undertaking from prosecuting counsel that, "if Mr Rice wants to check this in some way, he will have access to the vehicle or any expert he wishes to take." The implication of the Judge's intervention was that adequate time would be provided to the defence if they wished to pursue the matter. Again, there was no response. Counsel had said in the course of the objection submission that notice of the evidence might have affected the course he had proposed to adopt on his client's behalf but, despite his Honour's pressing him on the subject, he did not explain how prior notice would have affected his line of cross-examination of the witnesses who had already given evidence or, indeed, of those still to be called. The Judge observed that it had been quite obvious that the Crown was going to say that the calendar card had been used as a means of opening the door and he could not see how earlier notice would have affected the presentation of the defence; nor could he see what it would have had to do with trial by Judge alone as opposed to trial by a jury. He overruled the objection.

Mr Rice's affidavit does not explain how the defence case would have been presented any differently had he known about Garde's experiment in good time. It is not said that the defence would have run an experiment of its own and given evidence of that. Plainly the new evidence was unwelcome and unsettling but, procedural questions apart, there is nothing to suggest that the defence was prejudiced in any way. In my opinion the learned Judge's allowing of the evidence was justifiable in the circumstances. The lateness of that evidence did not make the trial procedures unfair.

It was an important aspect of the procedural unfairness submission that the appellant was influenced, he said, in his election for trial by Judge alone by the gap in the Crown case that was presented in the witness statements - the absence of any mention of the experiment evidence that was ultimately given by Garde. The learned Judge was not told, and this Court on the appeal was not told, why that was a factor in the appellant's election, and no reason for it occurs to me. The appellant was entitled to make an election on any ground he liked, including a whim, and ordinarily it would be quite inappropriate to examine the sufficiency of his reasoning. However, there are degrees of procedural unfairness and the absence of any rational support for this influence on his election decision does not make his case for any substantial degree of procedural fairness any stronger.

But there is a more fundamental obstacle to the acceptance of Mrs Shaw's general submission about procedural unfairness in this case. As a ground for staying or invalidating a trial, procedural fairness may take a number of different forms. The case law on the subject is growing. See, for example, King v The Queen (1986) 161 CLR 425, Walton v Gardiner (1993) 177 CLR 378, Rona v District Court of South Australia (1995) 63 SASR 223. Of course, the oppression or injustice or unfairness will have to be clearly established and instances of a conviction being set aside on broad principles of procedural unfairness are likely to be uncommon. It is necessary to remember that we live in an imperfect world and no accused is entitled to a flawless trial. Here much was made of the case management rules and the obligation of the Crown to conform with them. It failed to do so when it did not provide the defence with Garde's witness statement at the proper time and in a form that accorded fully with the evidence that he would eventually be asked to give, with the result, it was said, that the appellant did not have the trial to which he was entitled. So the submission ran, his conviction should be set aside, whether any actual prejudice or unfairness has been established or not. However, it is a regrettable but common feature of our trial practice that the Crown will produce new or supplementary witness statements up to the eve of the trial and sometimes during the trial itself. The lateness may be justifiable or it may not, and it will always be a matter for the trial Judge, if the defence may be embarrassed, to decide whether the Crown should be permitted to call the late evidence. The Court makes every effort, through its status conferences and the undertakings it requires, to keep such occurrences to a minimum, but new counsel are briefed and counsel have second thoughts and additional witnesses simply turn up and so on, and it would tilt the scales of justice markedly and undesirably if the Court were to impose a blanket prohibition on late evidence. The Court must sets its face against laxity or complacency in this area, and the normal sanction will be the exclusion of the evidence when it could be unfair in all the circumstances to admit it. If it can be allowed on just terms, most obviously by granting any necessary adjournment, sometimes by allowing the witness to be cross-examined on a voir dire, then that will ordinarily be the end of the matter. It will be a rare case indeed in which a defendant, although shown not to have been prejudiced by the lateness of the evidence, may nevertheless have his conviction set aside by reason of its introduction into the trial.

Here the learned trial Judge dealt with the problem, arising from what he referred to as part of the "rough and tumble" of a criminal trial, in the usual way. He wanted to know whether the defence was prejudiced by the late notice and, if so, whether that was something that could be remedied. As I have said, no relevant prejudice was identified by the defence then, or has been to us now. It was a bad case of oversight or dilatoriness, but no harm came from it. It provides no justification for setting aside the jury's verdict.

For these reasons I would dismiss the appeal against conviction.

The appellant was facing a maximum penalty of seven years for his attempt to escape. He had a substantial criminal record with four adult convictions for escaping between 1991 and 1995. The learned Judge's head sentence of eighteen months' imprisonment was moderate, even for an attempt. However, I think that the extension of the appellant's existing non-parole period by eighteen months raises a question. Escaping from custody is a serious offence and the appellant was a repeat offender. It was proper to take that into account in fixing the extension period as well as the head sentence. Indeed, the Full Court expressed the view in R v Forrest (1986) 46 SASR 75 that "the primary purpose of sentence for escape from custody is deterrence and there is far less scope for a parole component in such a sentence than is the case with sentences for other crimes" (at77). However, the Court did allow a small margin for parole in that case (and the remission system would have made it larger), although Forrest was a very serious offence of escape. I have examined a number of Full Court sentences for escape in recent years and in all of them there has been some allowance for parole. The learned Judge was influenced here by the fact that, under the appellant's existing sentence, he was due for parole in June 1997 (a few days after the new sentence was passed) with respect to a head sentence that would not expire until November 1999, and his Honour thought that this provided sufficient scope for parole notwithstanding the additional sentence. In a sense that may have been the case but I think, with respect, that the appellant was entitled to feel aggrieved at the result of his Honour's methodology. The relation between the existing head sentence and non-parole period was primarily a matter for the Courts whose sentences had achieved that result. In my opinion, exceptional cases apart perhaps, a prisoner in the appellant's position is entitled to have a non-parole period fixed by reference simply to his new cumulative sentence. By reason of the nature of the appellant's crime and his bad record the margin could not be a large one, but I think he was entitled to something.

I would allow the appeal for the purpose of reducing the non-parole period extension from eighteen months to fifteen months. In other respects the conviction and sentence should be affirmed.

PRIOR J

I agree.

WILLIAMS J

For the reasons given by Cox J I agree that the appeal against conviction should be dismissed. However, I would also dismiss the appeal against sentence.

In the circumstances of this case and of the appellant I do not consider that the extension of the appellant's non-parole period by the same amount as the new head sentence (18 calendar months) should be regarded as an error in principle. In my opinion the sentence meets the justice of the case and has not been shown to be manifestly excessive.